When Congress Plays Doctor

When HMOs deny life-saving care to their patients, members of Congress fulminate. Recently, 275 of them, including 29 Republicans, voted for a patients' bill of rights. "Deny American citizens effective, life-saving treatments or palliatives for pain?" I imagine them saying indignantly to the HMOs. "That's our job."

In the past few months, Congress and the Justice Department have been busy malpracticing medicine, callously violating patients' rights. The House passed a bill effectively criminalizing physician-assisted suicide in Oregon, despite its endorsement in two statewide referenda. The Senate passed an anti-abortion law that prohibits doctors from employing particular surgical techniques, even if they're necessary to preserve the woman's health. The Justice Department proceeded with the prosecution of two men, one stricken with cancer and the other with AIDS, who used marijuana to alleviate nausea and pain. The department relied on congressional declarations of the medical uselessness of marijuana.

Playing doctor (without regard for the Hippocratic oath), Congress makes it easy for even liberal social engineers to hate the government. Sometimes it seems dedicated to increasing human suffering. Imagine yourself terminally ill and in unrelenting pain, desirous of ending your now unwanted life. Then imagine Congress threatening your doctor with imprisonment if he or she prescribes a lethal dose of drugs at your request. All you can say is "How dare they," especially if you're a citizen in a state that has twice passed a death-with-dignity referendum. Shouldn't your wish to end your life prevail over Henry Hyde's compulsion to prolong it?

There is, after all, no evidence that Oregon's law has been abused by unscrupulous doctors, murderous families, or deranged patients. The Death with Dignity Act has safeguards aimed at ensuring that patients who choose death do so knowingly and willingly, and it applies only to terminally ill patients facing death within six months. In 1998 only 15 people took advantage of the law.

Still, Henry Hyde, who sponsored the congressional override of Oregon's right-to-die law, charged that it was turning doctors into "executioners." Not exactly a nuanced thinker, Hyde apparently doesn't understand the difference between murdering people who wish to remain alive and facilitating the suicides of terminally ill people seeking more merciful deaths than their diseases will allow.

This heartless bill could also deter doctors from administering effective doses of pain medication, although it is deceptively entitled the Pain Relief Promotion Act. On its face, the bill prohibits the use of federally controlled substances intended to hasten death and includes exceptions for drugs intended only to alleviate pain. (Doctors would face up to 20 years in prison for assisting suicides.) But who determines the intent of a doctor in prescribing pain medication that facilitates the death of a terminally ill patient? As the bill's opponents pointed out, we may not want federal drug agents and prosecutors hovering over our death beds, monitoring our doctors.

People who seek physician and patient autonomy from HMO bureaucrats may not welcome the medical interventions of Congressunless they believe that Congress is acting at the behest of God, seeking a higher good. Opposition to right-to-die laws is fueled partly by the religious fervor of anti-abortion activists. In their view, laws prohibiting assisted suicides or abortions aren't violations of individual liberty; they're restrictions on sinful individual license. Laws restricting or prohibiting abortions may even be framed by their supporters as patients' rights bills: To abortion opponents, the fetus is the primary patient; the pregnant woman deserves medical care only when it enhances fetal development or, at least, poses the fetus no harm.

During the recent Senate debate on a bill purporting to limit late-term abortions, the bill's supporters cast themselves as patient-advocates intent on protecting the most vulnerable patients from unscrupulous doctors. Doctors who perform abortions are "executioners," Pennsylvania Republican Rick Santorum charged, echoing Henry Hyde. The apparently demented New Hampshire Senator Bob Smith claimed that abortion clinics house "harvesters" in their back rooms who "take [the] baby, cut it into pieces and sell it."

Is this the man you want making medical decisions for you or your family? Late-term abortion laws, which have been adopted in some 30 states, tend to be drafted vaguely so as to prohibit common procedures that may be used any time during a pregnancy. Because of their breadth and their interference with doctor-patient relationships, late-term abortion prohibitions have been enjoined or limited judicially in a majority of states where they've been enacted. There are conflicting federal court opinions on the constitutionality of these laws, which are likely to be reviewed eventually by the Supreme Court.

Whether you view abortion prohibitions like this as malicious or benevolent government acts usually depends on whether or not you consider the fetus an equal to a human being who's actually been born. But even some who consider abortion sinful are bound to be troubled when women are killed or maimed by illegal abortions during periods of prohibition. People ambivalent about abortion may worry when women are deprived by legislative fiat of the safest, most appropriate abortion techniques. Whether or not abortions are cruel, congressional controls on abortion procedures, in their disdain for women's health, are hardly kind.

Cruelty doesn't always come naturally to people. Federal prosecutors must be selected for their callousness, or perhaps they enter training programs designed to purge them of compassion. How else can we explain the prosecution of Peter McWilliams and Todd McCormick?

Both men were among a group of nine defendants charged with growing and distributing marijuana, after a federal raid uncovered more than 4,000 marijuana plants. McCormick explains that he has smoked marijuana to alleviate pain from cancer treatments that fused several of his vertebrae. McWilliams says he has used marijuana to treat nausea caused by the AIDS drugs that have kept him alive. It is not hyperbole to suggest that the federal prosecution is killing him. Prohibited from using marijuana while awaiting trial for the past year, McWilliams has been vomiting frequently and not absorbing his AIDS medication; as a result, The Los Angeles Times has reported, his virus is no longer under control.

This is one case in which the defendants' side of the story is compelling, so the prosecutors didn't want jurors to hear it. The government successfully moved to prohibit McCormick and McWilliams from raising a medical-necessity defense and thus from telling their stories. The defendants were also prohibited from citing the federal government's own research into the medical uses of marijuana or explaining that their actions were permitted by state law: In 1996 California passed a referendum, Proposition 215, allowing for medical use of marijuana. Prosecutors were so anxious to exclude testimony explaining the medical reasons for using marijuana that they agreed to limit the case against McWilliams and McCormick to a charge of growing marijuana. (Charging them with distribution would have made their intent, or state of mind, an element of the case.) Deprived of their ability to defend themselves in court, both McWilliams and McCormick pled guilty to conspriracy to manufacture and distribute marijuana and face prison terms of up to five years.

According to prosecutors, medical-necessity defenses were simply irrelevant. "It doesn't matter if they say, 'I'm doing this to save my life,'" a spokesman for the U.S. Attorney explained. "It's illegal to manufacture or cultivate marijuana under federal law." In fact, it matters a great deal if a defendant engages in otherwise criminal behavior in order to save his life or the life of another. Haven't federal prosecutors heard of self-defense? The law allows you to kill someone who is poised to kill you. Surely, in defense of your life, it should allow you to grow marijuana plants.

But Washington's drug warriors seem to think Americans are better off dead than smoking dope. Federal law classifies marijuana as a class A substance, along with heroin and LSD, and prosecutors argued that Congress has decided it has no acceptable medical uses. District Court Judge George King agreed that Congress knows best: The medical-necessity defense proposed by defendants would "explicitly contradict a Congressional determination," Judge King ruled. He prohibited McCormick and McWilliams from telling their stories by invoking a doctrine of congressional infallibility.

Sometimes it's hard to know if the government is playing doctor or God. Armed with faith in its own omniscience and absolute rectitude, and assisted by federal prosecutors, a majority in Congress has assumed the power to deprive people of essential medical care, in order to enforce a particular moral code. In the majority's view, marijuana use, abortion, and suicide are so evil that they must be prohibited at any cost to individuals. Americans, it seems, must be prepared to sacrifice themselves to this congressional vision of the good.

That is the logic of terrorists, demagogues, and other absolutists who perceive no moral dilemmas. For them, the right path is always clear. Fearful of falling into the pit of moral relativism, many members of Congress and the Justice Department have cultivated a dangerous sense of self-righteousness, unleavened by self-doubt. They need lessons in moral modesty. It is a great civilizer. People not troubled by uncertainty are not hampered by compassion.

About the Author

Wendy Kaminer is a former senior correspondent for The American Prospect and a contributing editor at The Atlantic Monthly. She also serves on the national board of the American Civil Liberties Union.

A lawyer, social critic, and former Guggenheim Fellow, she writes about law, liberty, feminism, religion, and popular culture. Her latest book is Free for All: Defending Liberty in America Today. Other books she has written include Sleeping with Extra-Terrestrials: The Rise of Irrationalism and Perils of Piety; True Love Waits: Essays and Criticism; It's All the Rage: Crime and Culture; I'm Dysfunctional, You're Dysfunctional: The Recovery Movement and Other Self-Help Fashions; and A Fearful Freedom: Women's Flight from Equality. Kaminer's articles and reviews have appeared in many other publications, including The New York Times, The Wall Street Journal, The Nation, and Newsweek, and her commentaries have aired on National Public Radio.

Before embarking on her writing career, Kaminer practiced law as a staff attorney in the New York Legal Aid Society and the New York City Mayor's Office.